Pursuant
to Article 64 of the American Convention on Human Rights, the Government
of Colombia has requested an advisory opinion of the Inter American Court
of Human Rights. The Colombian request raises essentially two issues, one
narrow and one broad. The first is narrowly defined by Colombia as follows:

Does Article 64
authorize the Inter American Court of Human Rights to render advisory opinions
at the request of OAS member states or OAS organs seeking an interpretation
of the American Declaration of the Rights and Duties of Man, which was adopted
in 1948 by the Ninth International Conference of American States meeting
in Bogota, Colombia?

The second is broader:

What is the normative
status of the Declaration in the legal framework of the inter-American system
for the protection of human rights?

Colombia notes that
it seeks the Court's opinion on these issues because all member states of
the O.A.S. (even those such as the United States that are not party to the
Convention) have binding human rights obligations under the Charter; the Charter
creates the Inter-American Commission on Human Rights as a consultative organ
whose function is to "promote the observance and protection of human
rights"; and the Statute of the Commission names the Declaration as the
source of the human rights it is charged to promote with respect to states
that are not party to the Convention.

In
the view of the United States, the American Declaration of the Rights
and Duties of Man represents an important statement of human rights principles
forming the foundation of the Inter-American system for the protection and
promotion of human rights [1]. Complementing the Universal Declaration
of Human Rights adopted by the General Assembly of the United Nations, which
is respected and referred to by domestic and international courts around the
world, the American Declaration provides the underlying standard against which
the Commission may review the human rights performance of all O.A.S. member
states. However, because the Declaration is not a "treaty" as required
by Article 64, the United States believes that the Inter American Court of
Human Rights does not have jurisdiction to render an advisory opinion giving
a direct interpretation of the Declaration.

It is beyond dispute
that the O.A.S. member states, in adopting the Declaration, did not intend
to undertake binding legal obligations. Moreover, nothing that has occurred
subsequently -- including the adoption of the Protocol of Buenos Aires in
1967 -- has changed the juridical status of the Declaration. Indeed, quite
the contrary: the negotiations of the American Convention on Human Rights
demonstrate unambiguously the continuing view of the member states that the
Declaration is a nonbinding statement of principles. The United States must
respectfully but emphatically note that the Court is not empowered to impose
the Declaration as a binding legal commitment on those member states that,
in the exercise of their sovereignty, have not become parties to the American
Convention. Nevertheless, it is the view of the United States that while the
Court is not able to render direct interpretations of the Declaration under
its Article 64 powers, it can interpret and apply the Declaration -- with
full consideration of the limits of the Declaration's normative status --
in the exercise of its power to render opinions on other matters, including
the human rights undertakings of the member states under the Charter of the
Organization of American States.

Article 64 of the
American Convention on Human Rights provides that the Inter American Court
of Human Rights may be consulted on the proper interpretation of the Convention
itself or "of other treaties". In the view of the United States,
the advisory jurisdiction of the Inter American Court should be interpreted
in conformity with the recognized international meaning of the term "treaty".

In brief, under generally
accepted principles of international law, the term "'treaty' means an
international agreement concluded between States in written form and governed
by international law". See, e.g., Vienna Convention on the Law
of Treaties art. 2(a), opened for signature May 23, 1969, entered
into force Jan. 27, 1980, 1155 U.N.T.S. 331; Report of the International
Law Commission to the General Assembly, U.N. Doc. A/5209, [1962] II I.L.C.
Ybk. 157, 161-63 (commentary on the definition of "treaty"). An
essential requirement for a written instrument to constitute a "treaty"
is the intention of the parties to create legal rights and obligations or
to establish relations governed by international law. See id.; 1 D.P.
O'Connell, International Law 195 (2d ed. 1970); A. McNair, Law of
Treaties 6 (1961). If that intention does not exist, an instrument, though
perhaps an important statement of policy or aspirations, is without binding
legal effect. Such an instrument does not create legal rights or responsibilities,
and non-compliance with its provisions cannot give rise to any Nonbinding
International Agreements, 71 Am. J. Int'l L. 296, 300 (1977).

The American Declaration
of the Rights and Duties of Man was, until the advent of the American Convention,
the central document concerning the protection of human rights in the Americas.
Its adoption in 1948 represented an historic milestone in the development
of an inter American human rights system. However, the Declaration is a statement
of general principles, not a legally binding instrument. Consequently, it
does not constitute a "treaty" within the meaning of Article 64
of the American Convention on Human Rights.

The American Declaration
was adopted in the form of a simple resolution of the Ninth International
Conference of American State. See Res. XXX, Final Act of the Ninth
International Conference of American States, Bogota, Colombia, March 30-May
2, 1948, at 38 (Pan American Union). The Conference expressly considered the
question of the juridical status of the Declaration, and decided that it should
not have the force of a treaty and should not be made an annex to the Charter
of the Organization. See U.S. Dept. of State, Report of the Delegation
of the United States of America to the Ninth International Conference of American
States at 35-36 (Publ. No. 3263, 1948). The Conference also went on record
with an understanding that Article 5(j) of the charter (now Article 3(j) )
did not, through incorporation by reference, transform the provisions of the
American Declaration into binding obligations. Id. A year later, the
Inter-American Juridical Committee, which had drafted the original version
of the Declaration, restated the understanding of the Bogota Conference that
"it is obvious that the Declaration of Bogota does not create a legal
contractual obligation", and that, as a result, the Declaration lacked
the status of "positive substantive law". Inter-American Juridical
Committee, Report to the Inter American Council of Jurists Concerning Resolution
XXXI of the Bogota Conference, Sept. 26, 1949, reprinted in Pan
American Union, Human Rights in the American States 164-65 (1960).
This history is unambiguous that the American Declaration was not intended
to create binding legal obligations and therefore was not regarded by the
member states as a treaty.

While the United
States agrees wholeheartedly with the Government of Colombia that the issues
raised in its request are ultimately of "great importance", the
United States is of the view that the broad, abstract nature of the issues
raised should dissuade the Court from attempting to settle definitely the
question of the normative status of the Declaration in a decision under its
Article 64 powers. Article 64 gives the Court an extraordinary power, unique
in international practice, to render advisory opinions at the request of any
of the member states of the O.A.S. on points of interpretation of any treaty
concerning human rights applicable to American states. See "Other
Treaties" Subject to the Consultative Jurisdiction of the Court,
Advisory Opinion No. OC-1/82, Series A, No. 1 (Sept. 24, 1982) at para. 14-17.
In light of the broad reach of this power, the Court found in the "Other
Treaties" opinion that it must be extremely cautious in exercising
the power where to do so would weaken its contentious jurisdiction or weaken
or alter the system provided by the Convention in a way that might impair
the rights of individual victims of human rights violations. Id. at
para. 31; see also Compulsory Membership in an Association Prescribed by
Law for the Practice of Journalism, Advisory Opinion No. OC-5/85, Series
A, No. 5 (Nov. 13, 1985), at para. 21. The Court recognized that broad exercise
of advisory opinion jurisdiction at the request of states could undermine
or nullify the important role of the Commission in investigating and reporting
on cases brought by individuals. Such a result could effectively reduce participation
by individuals in the determination and exposition of human rights protections
in the inter American system. See "Other Treaties", at paras.
18-31.

The United States
believes the Court should also be reluctant to exercise jurisdiction over
a request for an advisory opinion where, as here, questions raised by the
request encompass complex issues relating to the relationship of the Court's
decisions to the O.A.S. member states that are not parties to the Convention.
In the U.S. view, the Court would be in a better position to answer the broad-reaching
abstract questions raised in the present request with the benefit of specific
factual contexts.

In this connection,
it is the U.S. view that the Court should decline to make a determination
of the precise normative scope of the Declaration in the inter-American system
and confine itself to the first part of Colombia's request set out above,
namely whether the Declaration is a "treaty" under the terms of
Article 64. If the Court finds that the Declaration is not a treaty, then
the Court should determine not to exercise its jurisdiction as a matter of
discretion, preferring to leave the issue of the precise normative status
of the Declaration to case-by-case adjudication in contentious cases brought
before it or in more narrowly drawn advisory opinion requests.

If the Court is nonetheless
persuaded that it should exercise jurisdiction over all the questions presented
in this case, it is the U.S. view that the normative status of the Declaration
remains unchanged by the Protocol of Buenos Aires.

In some cases involving
the United States of America, the Inter American Commission on Human Rights
has taken the position that the American Declaration of the Rights and Duties
of Man, although not adopted as a binding legal instrument, has acquired this
status as a result of the entry into force of the Protocol of Buenos Aires.
see Case 2141 (U.S.), res. 23/81, OEA/Ser.L/V/II/52, Doc. 48, Mar.
6, 1981; Case 9647 (U.S.), Res. 3/87, OEA/Ser.L/V/II.69, at 30. The
United States submits that this position is not supported by the facts or
by general principles of international law. For the Protocol of Buenos Aires
to have had such an effect in the absence of any explicit language, its drafters
must have intended to elevate the status of the Declaration. There is no evidence,
however, of such an intention. Rather, the Protocol of Buenos Aires expressly
anticipated the adoption of an inter-American convention on human rights,
and made no reference whatsoever to the American Declaration. See Protocol
of Buenos Aires, art. 112.

In support of its
view that the Declaration has become legally binding, the Inter American Commission
has cited without further explanation five articles of the revised O.A.S.
Charter: Articles 3(j), 16, 51(e), 112, and 150. None of these provisions
supports the Commission's conclusion.

1. Article 3(j).
Article 3(j) states, "The American States proclaim the fundamental rights
of the individual without distinction as to race, nationality, creed, or sex".
"Proclaim" is not a word implying obligation. This provision is
identical to Article 5(j) of the original Charter, which, as the Ninth International
Conference explicitly stated, did not incorporate the American Declaration
by reference. The renumbering of Article 5(j) in the amended Charter as Article
3(j), with no change in language, obviously could have no effect on the article's
meaning or significance.

2. Article 16.
Like Article 3(j), Article 16 of the amended Charter is not a new provision;
it is identical to former Article 13. It provides, "Each State has the
right to develop its cultural, political and economic life freely and naturally.
In this free development, the State shall respect the rights of the individual
and the principles of universal morality". Although Article 16 does make
reference to "respect[ing] the rights of the individual", it is
primarily concerned with the right of each State "to develop its cultural,
political, and economic life freely and naturally". The Ninth International
Conference expressly viewed the Declaration as a nonbinding instrument, notwithstanding
the existence of former Article 13 in the original O.A.S. Charter. The Conference
apparently never considered whether former Article 13 had any relationship
to the American Declaration, probably because the language of Article 13 left
no room for the argument that provision had any effect on the status of the
Declaration. Again, since the Protocol made no changes in this language, its
reiteration in the Revised Charter as Article 16 obviously had no effect on
the juridical status of the Declaration.

3. Article 51.
Article 51 of the revised Charter modified Article 32 of the original Charter
by including the Inter American Commission on Human rights as an organ of
the O.A.S. This article enhanced the authority of the Commission and not of
the Declaration. It gave new institutional legitimacy to the Commission by
providing that the Organization may accomplish its purposes through the Commission.
As such, actions of the Commission could be felt to carry more weight. Prior
to the Protocol of Buenos Aires, the Commission had operated as an "autonomous
entity" of the O.A.S., without a clear constitutional basis in the Charter.
There is no reason to conclude, however, that merely by formalizing the existence
of the Commission, the signers of the Protocol intended to transform the juridical
status of the Declaration.

4. Article 112.
Article 112 provides for the Inter American Commission on Human Rights and
states that "an structure, competence, and procedure of this Commission,
as well as those of other organs responsible for [human rights] matters".
This article refutes rather than supports the Commission's position by explicitly
recognizing the need for a binding legal instrument for the protection of
human rights in the Americas; it contains no suggestion that the American
Declaration had already been or was being elevated to that status.

5. Article 150.
Article 150 of the amended Charter provides that, until the American Convention
on Human Rights comes into force, "the present Inter American Commission
on Human Rights shall keep vigilance over the observance of human rights".
Because Article 150 was clearly intended as a transitory provision, there
is a threshold question whether it has any continuing effect, as the Convention
has now entered into force. The continuing competence of the Commission with
respect to member states that are not parties to the American Convention is
established, not by Article 150, but rather by the 1979 Statute of the Commission.

Even if Article 150
has some continuing vitality, however, there is no reason to interpret it
as elevating the American Declaration to treaty status. Prior to the adoption
of the Protocol of Buenos Aires, the Commission had operated under a statute
that declared, "for the purpose of this Statute, human rights are understood
to be those set forth in the American Declaration of the Rights and Duties
of Man". Statue of the Inter American Commission on Human Rights, art.
2, reprinted in Organization of American States, The Organization
of American States and Human Rights 1960-1967, at 601 (1972). During those
years, the Commission had "carr[ied] out its assignment of promoting
respect for human rights", id. at art. 9, although neither the
Declaration nor the Commission's Statute created any legal obligations. There
is no reason to believe that the Protocol's authorization, in an expressly
transitory provision, of the continued "vigilance" of the "present"
Commission entailed a fundamental transformation of the Declaration or the
Statute of the Commission, or even that it somehow entailed a permanent "incorporation"
of the Declaration into the Charter. Indeed, a fundamental transformation
was envisioned, but the means of that transformation was to be through the
creation of a new conventional regime, not the sub silentio modification
of the existing Declaration. Pending the adoption of the new conventional
regime, Article 150 merely left in place the "present" system, under
which the Declaration had been regarded as a nonbinding instrument.

More generally, the
United States notes that the elevation of the American Declaration to a binding
legal instrument would have been a momentous development in the inter-American
human rights system. Certainly, if the Protocol of Buenos Aires had been intended
to achieve this result, it would have been extensively discussed during the
negotiations. Instead, however, the available records of the negotiations
of the Protocol are silent with respect to the juridical status of the Declaration.

When
an inter- American human rights treaty was ultimately adopted -- namely,
the American Convention on Human Rights -- it was through a process of long
and careful negotiations. Moreover, even after its adoption at the Conference
of San Jose, the decisions by member states whether to assume the legal obligations
contained in the Convention were not made lightly. It look over eight years
for a sufficient number of states to ratify the Convention for its entry into
force. A number of member states, including the United States, have still
not become party to the Convention. Given this background, it is inconceivable
that the member states, without discussion, casually or implicitly agreed
to accept the provisions of the Declaration as binding legal obligations [2]. Indeed, although the United States
is still deliberating whether to ratify the Convention, if the United States
were to undertake binding legal obligations in the field of human rights,
it believes that the Convention is better suited for this function than the
Declaration, which was adopted as a general statement of principles and lacks
the precision of a treaty.

The text and negotiating
history of the American Convention on Human Rights demonstrates that, even
after the adoption of the Protocol of Buenos Aires, the member states continued
to regard the Declaration as a nonbinding instrument. In the draft convention
prepared by the Inter-American Commission on Human Rights, an article was
included stating:

No Provision of
this Convention shall be interpreted as:

...

(d) Excluding or
limiting the legal effect which the American Declaration of the Rights
and Duties of Man and other international acts of the same nature may have.

Art. 27, Doc. OEA/Ser.L/II.19/Doc.
48 (English) Rev. 1 (Oct. 2, 1968) (emphasis added). The United States commented
on this article, noting, "The word 'legal' should be deleted from the
subparagraph because a declaration such as the American Declaration of the
Rights and Duties of Man does not, in and of itself, have any legal effect".
American Convention on Human Rights, working Doc. 10 (english) (Oct. 6, 1969),
reprinted in 2 T. Buergenthal & R. Norris, Human rights: The
Inter American System, Booklet 13, at 165 (1982). This view was adopted
by the Conference and the article as adopted by the Conference (present Article
29) referred simply to the "effect" of the Declaration rather than
the "legal" or "juridical" effect. Id.., Booklet
12, at 143.

The preamble to the
Convention also reflects the view that the Declaration is not a binding legal
instrument. In the preamble, the states signatory took note of the "principles"
set forth in the American Declaration, and explained the justification for
a convention "reinforcing or complementing the protection provided by
the domestic law of the American States". If the Declaration were of
treaty status, then its provisions would be binding obligations, not "principles".
Moreover, if the Declaration were of treaty status, then the American Convention
would have been the second general convention on human rights, and
its terms would either supplement and refine, or replace, the terms of the
Declaration. But the preamble of the American Convention shows that the understanding
of the states signatory was that the Convention was "reinforcing or complementing"
domestic human rights protections, not an existing international treaty
regime.

Finally, neither
the Commission's Statute nor its Regulations have altered the nonbinding nature
of the American Declaration. The only references to the Declaration in the
present Statute applicable to nonparties to the Convention appear in Articles
1 and 20. These articles provide that the rights set forth in the Declaration
are the standard by which the Commission may carry out its functions and powers
with respect to member states that are not parties to the Convention. These
functions and powers of the Commission, which are primarily to review the
human rights performance of member states and make recommendations to them,
do not depend on the Declaration's being a binding legal instrument. For example,
Article 1 declares that the Commission was "created to promote the observance
and defense of human rights and serve as consultative organ of the Organization".
In articles 18 and 20 the Commission's powers are defined in the following
terms: "pay particular attention to", "examine... and make
recommendations", "develop an awareness of human rights", "prepare
.... studies", "request", "respond to inquiries",
"submit an annual report", "conduct on-site investigations",
"submit the program-budget", etc. These are not functions that carry
an implication that the Declaration is binding. In fact, these articles continue
in effect the rules of the "old" Commission -- rules that, as explained
above, did not depend on the Declaration's being a binding legal instrument.
In any case, both the Statute -- which is a General Assembly resolution --
and the Commission's Regulations -- which are internal rules of procedure
-- lack the authority to change the juridical status of the Declaration.

In sum, the Declaration,
which was adopted as a general set of principles, and around which the Commission
and its functions have been created, has never had its fundamental legal character
altered. It has simply been carried forward into the evolving inter-American
system. It is the system and the institutions protecting human rights in the
inter-American system that have changed their legal character, not the Declaration.

In the event the
Court does reach the issue of the normative status of the Declaration, then,
the U.S. view is that the Declaration remains what it was when it was adopted:
an agreed set of nonbinding general principles. In the case of member states
that are party to the Inter-American Convention on Human Rights, the Declaration
now serves as nonbinding general principles underlying the binding obligations
of the Convention to which the Commission and the Court may have reference
in interpreting those obligations. In the case of member states that have
not undertaken binding human rights obligations under the Convention, the
Declaration remains as it was before the Protocol of Buenos Aires, an agreed
set of nonbinding general principles against which those states' compliance
with their human rights undertakings under the Charter may be evaluated by
the Commission.

Although Article
64 does not give the Inter-American Court of Human Rights the power to render
an advisory opinion directly on a question involving the Declaration, the
Court may still refer to and interpret the Declaration in the course of rendering
opinions in individual cases or in advisory opinions under Article 64. Because
the Declaration represents a set of agreed principles forming the foundation
of the inter-American system of human rights protection established by the
Charter, the Declaration may be adverted to and drawn upon in interpreting
the binding provisions of the Charter, the Convention and other treaties applicable
to the protection of human rights in the American States. See "Other
Treaties" Subject to the Consultative Jurisdiction of the Court,
Advisory Opinion No. OC-1/82 (Sept. 24, 1982) at para. 52. However, the Declaration's
limited normative status must be recognized. The Declaration serves only as
common principles guiding the interpretation of other, binding provisions.

In the view of the
United States, the Declaration may not be interpreted by the Court or the
Commission to bind member states of the O.A.S. directly. Even if the Court
were to find that the Declaration somehow was "incorporated" in
the Charter by the Protocol of Buenos Aires, which the United States vigorously
disputes, the statements in the Declaration would not change their juridical
character within the inter-American system: they would remain a nonbinding
set of general principles. Thus the Court and the Commission would only be
empowered to refer to those principles to seek guidance in interpreting the
binding obligations of the Charter, the Convention and other applicable treaties.

The American Declaration
of the Rights and Duties of Man represents a noble statement of the human
rights aspirations of the American States. Unlike the American Convention,
however, it was not drafted as a legal instrument and lacks the precision
necessary to resolve complex legal questions. Its normative value lies as
a declaration of basic moral principles and broad political commitments and
as a basis to review the general human rights performance of member states,
not as a binding set of obligations.

The United States
recognizes the good intentions of those who would transform the American Declaration
from a statement of principles into a binding legal instrument. But good intentions
do not make law. It would seriously undermine the process of international
lawmaking -- by which sovereign states voluntarily undertake specified legal
obligations -- to impose legal obligations on states through a process of
"reinterpretation" of "inference" from a nonbinding statement
of principles.

Notas

[1]
The human rights principles of the American Declaration, as well as the O.A.S.
Charter and the Convention, are of two distinct kinds. The first kind -- civil
and political -- set limits to state authority over individuals. They are
capable of immediate implementation by states. The enjoyment of these rights
is necessary for the enjoyment of all other rights. The second kind -- economic,
social and cultural -- express standards of well-being the realization of
which requires progressive development of a technical and economic nature
from member states acting individually or in cooperation.

[2]
In this regard, it is significant that the U.S. Department of State, in
testimony before the United States Senate concerning the Protocol, indicated
that the Protocol did not create new legal obligations for the United States
and made no mention of the American Declaration. Amendments to the OAS
Charter, Hearing before the Senate Committee on Foreign Relations, 90th
Cong. 1st Sess., Exec. L, Feb. 6, 1968. Similarly, the Committee on Foreign
Relations of the U.S. Senate, in recommending advice and consent to ratification,
stated its view that the Protocol would not expand U.S. obligations in the
economic and social fields. It did not refer to the American Declaration and
stated simply, "Provision is made for a commission to promote the observance
and protection of [human] rights, but the structure, competence, and operation
of the commission are left to be determined by a yet-to-be negotiated inter-American
convention on human rights". Amendments to the Charter of the Organization
of American States, Exec. Rep. No. 1, 90th Cong. 2d Sess., April 4, 1968,
at 6.